Here’s a seemingly simple question: Which of the following activities is most likely to get you a threatening letter for copyright infringement? Pirating a movie? Sharing a song? Or Posting a stock photo to your site?
Since the RIAA has stopped its litigation campaign, the odds of being sued for one night of casual, or even less-than-casual music sharing is almost nil. The same is true for movie file sharing. Though the U.S. Copyright Group has ramped a very large litigation campaign it only targets a small subset of movies, largely independent films such as “The Hurt Locker” and even then can only target a small percentage of the potential sharers.
Surprisingly, your best chance of getting hit with a copyright infringement demand letter, almost certainly, is for posting stock photos to your blog or website. Though it may seem like a relatively harmless thing, stock image companies have been especially aggressive in dealing with copyright infringement and have mounted a campaign that has lasted almost a decade against those who use their images without permission.
Some call this copyright extortion, others good enforcement. But it’s a campaign that has largely flown under the radar of most in copyright circles and one that has barely been mentioned in the press.
However, it is a campaign all bloggers and webmasters need to be aware of as it is one that could very easily come back to bite them.
How it Works
Simply put, image matching technology has moved forward a great deal in the last five years and the early adopters of it were primarily stock photo and image companies. However, rather than simply issuing takedown notices or cease and desist letters, many of the companies, most prominently Getty Images, have been sending out demand letters, telling infringers they have to pay as much as $1,000 or more per image.
Unlike the RIAA and the U.S. Copyright Group cases, there are almost no lawsuits filed in these cases. This means there is no public record other than with the handful of cases that are discussed publicly or that make it to court. There’s also no press machine promoting these cases, unlike with the RIAA, so there is no information about who is being targeted and how many letters are being sent out.
This has made gathering statistics on the matter almost impossible. One law firm has handled 300 cases but a more complete estimate from the L.A. Times, says there are “tens of thousands” of letters per year.
Since the campaign has been ongoing since at least 2006, it is very likely that the number of letters sent over stock images exceeds the number of music and movie industry lawsuits combined (35,000 for the RIAA and 14,000 to date for the U.S. Copyright Group) (Note: The MPAA primarily targets the sites behind file sharing, not individuals, though the MPAA did file a small number of suits against individuals, also, the U.S. Copyright Group may be making a bid to leapfrog the stock photo industry in a few weeks.)
But despite the volume, the campaign has gone largely unnoticed. Few press releases have discussed the letters and almost no media coverage of the campaign.
How has this gone unnoticed? The answer is actually fairly simple.
The Big Difference
Why is it stock photo companies can send small companies and individuals thousands of threatening letters with almost no backlash but the RIAA and MPAA has a news story published every time they file even just a few hundred? There are two reasons.
First, the movie and record studios widely publicized their cases. Most would say that their efforts were as much about publicity and attention as actually earning any money. Judging from the reported figures in the RIAA cases, they were far from profitable. However, the stock photo companies have been very quiet about their efforts. Getty Images, for example, does not have a single press release on the topic on their site (at least not that I could find going back to 2000).
The second, and more important reason is the way in which the two proceed. When the movie or record studios want to target a file-sharer, they need to first get that person’s information as all they usually have is their IP address. That requires filing a “John Doe” lawsuit to get a subpeona from the ISP.
However, with the stock photo companies, most sites, especially businesses, are more than happy to put all of the needed contact information on their site or have it in their whois information. This lets the stock photo companies skip the expense and publicity of a lawsuit and go straight to a private demand letter. This makes the process much less expensive and much less public.
It also makes it much more difficult to track these cases and see what happens with them. We know a few make it to court though most seem to be settled before that point (likely after some negotiation) and others are dropped for various reasons.
Unfortunately, most of the evidence there is anecdotal and the nature of the campaign makes gathering real statistics virtually impossible.
Problems With the Campaign
The same as the other content industry’s massive anti-piracy campaigns sometimes went astray, so too has the stock photo one.
Part of the problem is that at least many of the threatening letters have been sent to companies who either used professional design firms or thought they had acquired the rights from a third party. While this may not excuse the infringement in court, it certainly affects the damages likely to be awarded and generates sympathy for the target.
This actually played a key role in a recent court decision on the subject (see left-hand side) where MasterFile, one of the more aggressive agencies, filed suit against a small cycling tour company for use of several of their images. MasterFile won the suit but it was a Pyrrhic victory that saw them awarded just $1,120, less than their initial demands, and spend over $4,000 in legal fees.
However, other issues have been repeatedly raised with these cases including whether the work has been properly registered with the U.S. Copyright Office and even if the agency has the authority to act on behalf of the content.
But more than anything, the campaign has been controversial. Some have referred to it as “legalized extortion” and a simple search for “Getty Letter” turns up dozens of sites where recipients are complaining about the threats.
On the other hand, a representatives from the industry put things in a different light. One such representative from Getty once said that, “The thing we try to do is just have a conversation with the customer. We make them aware that it has happened and that they need to look at addressing it and making sure it’s licensed. It goes into writing at the point when there’s denial of use or people saying they didn’t know.”
In my personal experience though, most people are blindsided by these demand letters. I’ve been approached by half a dozen people who have been given one of these letters, none received any warning.
By comparison, no one has asked me for help with RIAA or MPAA lawsuit threats.
What is Being Done
There are several things that are being done to address these issues. For one,
attorneys Matthew Chan & Oscar Michelen (Correction: Matthew Chan is not an attorney though Oscar Michelen is. Chan is, however, the founder of the site in question. My apologies for the confusion.) have set up a site and offer reduced-rate legal counsel for those who receive these letters.
However, the stock photo industry has also been contributing some to mitigating this issue. A group of the major agencies launched the site StockPhotoRights to inform consumers about how to license photos, though it also cautions users against using CC-licensed images.
Beyond that though, it is crucial for webmasters and site owners to be aware of this campaign and take steps to avoid getting caught in it. This means, first and foremost, ensuring that you properly license all of the images you use and that, if you have a design firm build a site for you, that you are sure they have clearance on all of the images they use. Remember, even if you didn’t put the image on your site, you can still be held liable.
Corbis’s senior counsel, Claire Keeley, once said that “My goal is to make my job obsolete. The ideal scenario is we have businesses properly licensing these images through sales channels.”
Unfortunately though, it seems as if there is no end in sight and with more companies using this method for resolving copyright disputes and increasing international expansion, the number of letters sent seems to be poised to grow.
When I was first brought on at CopyByte, the copyright and plagiarism consulting firm I now own, I was brought in to do the same kind of enforcement that Getty Images and others do, but for written works.
However, rather than send countless threatening letters demanding thousands of dollars in damages, we took a different approach. We sent a “soft” cease and desist letter with a sales pitch inviting people to become paying customers. Many signed up. With the nature of the client’s business this was more valuable over the long term than a quick settlement.
Though the project ended, it was a success and it was done without damaging the client’s reputation or causing any ill feelings. In fact, despite sending hundreds of letters, only one recipient was upset in any appreciable way and compliance was extremely high. Many were actively grateful for the way the situation was handled and signed up because of that.
This exact system isn’t right for every industry or every business, and it probably isn’t right for the stock photo industry, but it shows that there are other solutions to sending threats and demanding settlements.
One just has to be willing to experiment to find the correct approach.
If you run a website, whether for your business or just a blog, you need to be careful about how you obtain the images you use. There are many good, free and legal ways to get images for your site, including one owned by Getty, but you need to be careful about how you use them.
Though it is unclear how effective this campaign has been, there is little doubt that it has been widespread and has impacted thousands of webmasters of all stripes. Webmasters would be wise to keep this in mind whenever they reach for images to use on their site.
Because even if the threat is dismissed or dropped without payment, it is still a cause of fear and stress until the matter is resolved and is something no one wants to endure.
Fortunately, it is a fairly simple problem, just requiring a little more attention to where your images come from.
Disclosure: I recently gave a webinar for Digimarc